Relator seeks certiorari review of a Minnesota Pollution Control Agency
Clean Water Act Section 401 certification. We dismiss as moot.

FACTS

The Marsh Creek Flood Control Project (project) is a floodwater
impoundment project proposed for Marsh Creek in northwestern Minnesota. The
project, an earthen dam one-quarter mile long and 23 feet high, will be
utilized to store Marsh Creek floodwater. In flood years, the impounded
floodwater may, for a maximum storage time of 15 days, inundate from 225 to 330
acres, including 145 acres of wetlands. Construction of the project will
necessitate discharging fill into 1.7 acres of wetlands.

In July 1992, respondent Wild Rice Watershed District (District)
submitted to the U.S. Army Corps of Engineers (Corps) a project Section 404
permit application. On January 27, 1995, the Corps issued a public notice
regarding the Section 404 permit application. The notice described the project
and invited public comment. The notice also stated:

This Public Notice has been sent to the Minnesota Pollution Control Agency and
is considered by the District Engineer to constitute valid notification to that
agency for water quality certification. The Minnesota Pollution Control Agency
has indicated that it intends to review this project to determine the
appropriate action under Section 401 of the Clear Water Act.

Thirteen months later, the Corps advised respondent Minnesota Pollution Control
Agency (PCA) that the Corps considered the Clean Water Act Section 401
certification waived because the PCA had taken no certification action within a
year of the public notice. The letter requested from the PCA any final
comments on the project within 30 days.

On July 24, 1997, the Corps issued a Section 404 permit. This permit is still
"unexecuted," however, for it has not yet been signed by the District. The PCA
issued its Section 401 certification on August 13, 1997.
In September 1997, relator Minnesota Center for Environmental Advocacy by
certiorari appeal challenged the PCA's Section 401 certification. The Corps, a
respondent in the action, removed the case to federal district court. The
federal district court subsequently dismissed the Corps from the action and
returned the case to this court.

D E C I S I O N

Section 401 of the Clean Water Act provides:

Any applicant for a Federal license or permit to conduct any activity
including, but not limited to, the construction or operation of facilities,
which may result in any discharge into the navigable waters, shall provide the
licensing or permitting agency a certification from the State in which the
discharge originates or will originate * * * that any such discharge will
comply with the applicable provisions of sections 1311, 1312, 1313, 1316, and
1317 of this title. * * * If the State [here the PCA],
interstate agency, or Administrator, as the case may be, fails or refuses to
act on a request for certification, within a reasonable period of time (which
shall not exceed one year) after receipt of such request, the certification
requirements of this subsection shall be waived with respect to such Federal
application. No license or permit shall be granted until the
certification required by this section has been obtained or has been waived as
provided in the preceding sentence.

33 U.S.C. § 1341(a)(1) (1994) (emphasis added); see also
Minn. R. 7001.1460 (1997) (PCA waives authority to issue Section 401
certification if it fails to make final determination within one year after
receipt of application).

Relator argues that the PCA's Section 401 certification is invalid because the
PCA failed to follow its procedural rules and because the certification was
arbitrary and capricious. The District, on the other hand, contends that by
failing to timely act on the Corps' request for certification the PCA waived
its Section 401 certification, and that this challenge to the 401 certification
is meaningless.

A Section 404 permit is needed before fill can be discharged into wetlands.
33 U.S.C. § 1341(a)(1). The Corps granted the Section 404 permit based on
its determination that, because the PCA had failed to act within a year of
public notice, the state certification requirement had been waived. See
id. (federal permit can be granted once Section 401 certification has
been obtained or waived).

The PCA's belated certification has no impact on the previously issued Section
404 permit, nor does it affect the District's ability to go forward with the
project. Any determination by this court as to the validity of the
certification would, as a consequence, have no legal effect. Any legal
challenge at this point would have to be to the Corps' Section 404 permit and
would have to be brought in federal court.[1]

This court cannot grant effectual relief at this time. Relator's appeal of the
PCA 401 certification is, therefore, moot. See In re Schmidt,
443 N.W.2d 824, 826 (Minn. 1989) (if court cannot grant effectual relief, issue
is moot).
Because we dismiss as moot, we do not address the PCA's argument that relator
has suffered no "injury in fact" and therefore lacks standing to challenge the
Section 401 certification. Further, the various motions to supplement the
record are denied as moot.

Dismissed.

*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1] If the federal court considered validity of
the PCA certification relevant and doubtful, it could, under the Uniform
Certification of Questions of Law Act, certify that question to the Minnesota
Supreme Court. See Minn. Stat. § 480.061, subd. 1 (1996)
(supreme court may answer questions of law certified to it by federal district
or appellate courts).